Canadian Underwriter

Six-figure pain and suffering judgement against Wal-Mart Canada attracts appeal court scrutiny

May 29, 2020   by Greg Meckbach

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A $225,000 award in a lawsuit against Wal-Mart Canada, arising from the accidental spraying of a fire extinguisher by a worker, could be headed to the Supreme Court of Canada.

The victim of the accidental spraying, Kim Manos, initially won the lawsuit as a result of a January 2019 ruling by the Ontario Superior Court of Justice. But Wal-Mart was partly successful on appeal, with a new trial ordered in Manos v. Riotrin Properties (Flamborough) Inc., released Mar. 16, 2020, by the Court of Appeal for Ontario.

Manos is now applying for leave to appeal that decision, the Supreme Court of Canada announced May 29.

At any time, retailers could be the target of a lawsuit from a customer, someone browsing in the shop, or even just a passer-by, TruShield Insurance notes in a white paper, commenting in general on retail liability risk and not on Manos v. Riotrin, or any other specific case.

In Manos’s case, he claimed he suffered reactive airways disorder syndrome (RADS) as a result of the accident. In his lawsuit, Manos named Riotrin Properties (Flamborough) Inc., Wal-Mart Canada, and “John Doe” as defendants.

Manos brought in several expert medical witnesses. For its part, Wal-Mart hired its own expert witnesses, whose evidence was called to support the store’s contention that the plaintiff does not in fact have RADS.

The trial judge accepted expert evidence from the plaintiff’s respirologists but did not provide sufficient reasons for rejecting the defence’s expert evidence, the Court of Appeal for Ontario found in its unanimous decision this past March.

Instead, the trial judge relied on a summary from a psychiatrist acting as an expert witness for the plaintiff. That witness mistakenly said the majority of the experts were of the opinion that the plaintiff likely developed RADS as a result of the incident, the appeal court wrote.

It was open to the trial judge not to accept the defendant’s expert evidence, but “his reasons had to demonstrate why he rejected it and that rejection had to be rooted in the evidence before him, otherwise his reasons would not be reasonably intelligible to the parties or amenable to meaningful appellate review.”

If the Supreme Court of Canada accepts the plaintiff’s leave application, it does not mean the plaintiff necessarily wins. It just means the top court could conceivably overturn some or all of the Court of Appeal for Ontario’s ruling. Many leave applications are dismissed; if this happens to Manos, then the order to have a new trial will stand. Normally the Supreme Court of Canada rules on leave applications within six weeks of all materials being submitted.

Wal-Mart had several arguments on appeal, one of which was rejected.

The Court of Appeal disagreed with Wal-Mart’s argument that the plaintiff’s expert respirologist, in giving an opinion on legal causation, went beyond the allowable scope of opinion evidence. The appellate court countered that the trial judge did not rely on the respirologist’s evidence regarding legal causation but instead relied on that doctor’s evidence about his diagnosis. That expert opinion was allowed because that opinion was based on the witness’s observations and participation in the events as a treating physician, the appeal court found.

Wal-Mart also argued that the trial judge erred in awarding non-pecuniary general damages of $225,000, and for relying on foreign court rulings in making that award. The Court of Appeal did not decide on that matter, reasoning it was unnecessary if the case is being re-tried.

Non-pecuniary damages, also known as pain and suffering, are for non-economic losses and therefore often contested.

Canada has a cap of roughly $400,000 on pain and suffering awards. That is in place because a $100,000 cap, indexed to inflation, was established by the Supreme Court of Canada in a series of rulings in the late 1970s.

One resulted from catastrophic injuries suffered by motorcyclist James Andrews in 1972 when he collided with a van owned by Grand and Toy in Edmonton. The pain-and-suffering component of the Alberta Court of Queen’s Bench award against Grand and Toy was cut from $150,000 to $100,000, not adjusted for inflation.

“There is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms,” Justice Brian Dickson wrote for the Supreme Court of Canada in its 1978 ruling in Andrews v Grand & Toy.

“If damages for non-pecuniary loss are viewed from a functional perspective, it is reasonable that large amounts should not be awarded once a person is properly provided for in terms of future care for his injuries and disabilities,” Justice Dickson wrote at the time.

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